Why didn't the Mounties charge Nigel Wright? Tactics.

iPolitics Insights

So let’s review. In April, the RCMP announced that it would not proceed with charges against Nigel Wright in relation to his secret payment of $90,000 to then-sitting senator Mike Duffy.

Given that the RCMP had stated previously that there were reasonable and probable grounds to believe that Wright had committed an offence, the sudden announcement that the prime minister’s former chief of staff would not face any charges came as a surprise.

Here’s the really interesting part: Duffy is also charged with offences relating to bribery for accepting the $90,000 cheque from Wright. This is the same offense for which the RCMP said that “the evidence gathered does not support criminal charges against Mr. Wright.”

Why did Mounties charge Duffy but not Wright? Bribery is a two-way street, after all. Given the available facts, it appears the RCMP made its decision on the basis of assumptions that are more tactical than legalistic.

It is possible that the RCMP did not believe that there were reasonable grounds that Wright had committed an offence — that would be the legal explanation. “Reasonable grounds” is a lesser standard of proof than “beyond a reasonable doubt”, but it still requires some evidence of both a guilty act and a guilty mind. There’s no disputing the fact that Wright penned the cheque — but what was going on in his head?

The RCMP conducted a lengthy interview with Wright about his role in the repayment of Duffy’s expenses and it appears that Wright fully cooperated. He provided a detailed statement, he waived privilege and he provided the RCMP with email evidence.

By declining to lay charges against Wright the RCMP limits damage to his credibility — which can only increase his value as a witness.

In his interview with the RCMP, Wright denied any ill motive. The RCMP’s search warrant reported that Wright claimed his actions were all about protecting taxpayers: “Mr. Wright then offered to cover the cost for Senator Duffy, believing it was the proper ethical decision that taxpayers not be out that amount of money.”

A criminal charge of bribery requires an element of corruption. Wright claims that he did not have a corrupt purpose; perhaps the RCMP believed this.

However, the balance of the available evidence casts doubt on Wright’s claim that the $90,000 transaction was a simple payment to protect taxpayers, born of a pure motive.

If that’s true, why were there detailed and high-level discussions in Harper government circles about the repayment? Why were there conditions attached to it? Why was there was a quid pro quo? Why all the secrecy?

These are facts that the RCMP and the provincial Crown prosecutors — who were reportedly consulted — could not have ignored. So if there were reasonable grounds to charge Wright, why is he not facing charges with Duffy?

Duffy’s case is headed to trial; Wright will surely be a star witness. By choosing to not charge Wright, the case against Duffy is made stronger. If Wright and Duffy were jointly charged, Wright would not be a compellable witness for the Crown and essential evidence could be lost.

Further, if Wright and Duffy had been jointly charged, any statements made by Wright and adduced into evidence could not be used against Duffy.

Most important, by declining to lay charges against Wright the RCMP limits damage to his credibility — which can only increase his value as a witness.

For months now, RCMP Commissioner Bob Paulson has been insisting that there is a paper trail of documentation explaining and justifying the RCMP’s decision to refrain from charging Wright. In April, Paulson said that it “shouldn’t be very long” before the public finds out why the RCMP did what it did in this case. We’re still waiting.

A tactical decision isn’t necessarily the wrong thing to do in this case — but given the public nature of the investigation, it’s certainly something the RCMP needs to explain.

Michael Spratt is a well-known criminal lawyer and partner at the Ottawa law firm Abergel Goldstein & Partners. He has appeared in all levels of court and specializes in complex litigation. Mr. Spratt is frequently called upon to give expert testimony at the House of Commons Standing Committee on Justice and Human Rights and the Senate Standing Committee on Legal and Constitutional Affairs. He is a past board member of the Criminal Lawyers’ Association and is on the board of directors of the Defence Counsel Association of Ottawa. Mr. Spratt’s continuing work can be found at www.michaelspratt.com and on twitter at @mspratt

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